July 23, 2020 4:20:25 am
A day after the Rajasthan High Court asked him to defer action on the disqualification notices issued to former Deputy Chief Minister Sachin Pilot and his 18 MLAs till July 24, Rajasthan Assembly Speaker C P Joshi moved the Supreme Court on Wednesday.
Seeking an interim stay on the High Court’s direction, Joshi, in his petition, said it was “illegal, perverse and in derogation of the powers of the Speaker under the Constitution”. A Bench of Justices Arun Mishra, B R Gavai and Krishna Murari will hear the matter on Thursday.
Hours after Joshi filed his petition, Pilot filed a caveat in the Supreme Court urging it to hear him before passing any order.
Speaking to The Indian Express, Joshi said while he did not want a confrontation with the judiciary, the law is clear that courts cannot intervene before the Speaker decides on the disqualification.
He said he had only issued showcause notices to the MLAs on a complaint filed by the Congress chief whip. “Showcause notice is simply to get information. That is standard practice. When a complaint is received, a showcause notice is issued. I have not taken any decision on it,” he said.
“I don’t want confrontation. Whatever they (High Court) have decided, we have agreed to it… But the fact of the matter is that the judgment given by the Constitution Bench in 1992 was very clear – that it is totally in the domain of the Speaker to decide on disqualification of members, and no court can intervene in between,” said Joshi.
“A Speaker is a Constitutional authority. And he is given ample powers by law – the disqualification law passed by Parliament, duly endorsed by court, and all examples till today is that no court has intervened in between,” he said.
Asked if a member could be disqualified for not attending a legislature party meeting, Joshi said: “I have not dealt with all that…on the merit of it… I have only issued showcause notices on a complaint received by me.”
“As a Speaker, the group is not important for me. I have received a complaint from the Congress chief whip. And on the basis of that, I have given notices. That is all. I have not proceeded further. And in between, this has happened. The courts cannot intervene before the Speaker decides on the disqualification. Then the Speaker cannot do anything,” he said. “As a Speaker, then I am only a silent spectator. Then what am I the Speaker for, if I cannot use the powers given to the Speaker,” he said.
“For me, it is not about Sachin Pilot or Ashok Gehlot. I am the Speaker. The 1992 judgment of the Constitution Bench of the Supreme Court and all judgments after that, including the recent one on Manipur, make it clear that the court can only intervene after the Speaker decides on the disqualification… This is the set principle of law,” he said.
Joshi said the lawyer who represented him had urged the High Court to direct the petitioners to approach the Speaker first, but they didn’t agree.
In the Supreme Court, Joshi said he was “constrained to move this instant Special Leave Petition urgently” as the High Court “has intervened in pending Tenth Schedule proceedings at the initial notice stage itself and restrained” him “from even calling for replies and conducting the disqualification proceedings pending against the respondents till 24.07.2020.”
The petition, filed through Senior Advocates Kapil Sibal and Vivek Tankha and Advocate Sunil Fernandes, said the High Court’s order “is in effect a stay on the powers of the Speaker under the Tenth Schedule to adjudicate on a disqualification petition”.
“The proceedings under the Tenth Schedule before the Speaker are proceedings of the Legislature and as such cannot be interfered with, as repeatedly held by this Hon’ble Court, as envisaged under Article 212 read with para 6(2) of the Tenth Schedule,” said the petition.
Referring to the 1992 ruling of a Constitution Bench of the Supreme Court in the Kihoto Hollohan v. Zachillhu case, it said the Bench “expressly held that courts cannot interdict the Speaker from proceeding ahead at the quia timet stage (where action is threatened or imminent but has not yet commenced)”.
Joshi, in his petition, said the notice issued to the rebel MlAs on July 14 “was only limited to inviting comments from the respondents and there was nothing adverse against the respondents. It is submitted that such a notice is not the final determination or decision on disqualification but only a commencement of the proceedings”.
He said even the final decision of the Speaker is amenable to judicial review only on limited grounds, and, in such a situation, “it is inconceivable that the notice… calling for comments on the disqualification is subject to judicial review”.
Seeking an urgent hearing, the petition said the Supreme Court, “as the sentinel on the qui vive, has a duty to ensure that all the authorities under the Constitution exercise their jurisdiction within the boundaries and respective ‘Lakshman Rekha’ envisaged by the Constitution itself”.
It said the “judiciary was never expected, under the Tenth Schedule, to interfere in the manner it has done in the instant case resulting in this constitutional impasse”.
Granting temporary relief to Pilot and his MLAs, the Rajasthan High Court on Tuesday deferred its order on their petition challenging the disqualification notices, till July 24. It also asked the Speaker to extend the period given to the rebel MLAs to reply to his notice till then. The Speaker later agreed to defer any action “till the evening of July 24”.
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